Employees have remedies available if they have been the victim of discrimination at work. For example, if they have been treated adversely due to a protected ground, they may be able to apply to the Human Rights Tribunal of Ontario (HRTO).

One such protected ground is race. But how do you show that race was a cause of the adverse treatment experienced? This article looks at how the HRTO makes such determinations concerning the recent decision in the case of Querobin v Toronto District School Board.

The Human Rights Code prohibits racial discrimination 

The Ontario Human Rights Code (Code) prohibits discrimination on certain grounds in employment. These include race, ancestry, place of origin, colour, ethnic origin, citizenship and creed.

Under the Code, prohibited discrimination can take a variety of forms. In addition to direct and indirect discrimination carried out through another person or organization, the Code generally outlaws constructive discrimination. This refers to rules or practices that unintentionally single out a group of people and treats them unequally.

What is racial discrimination?

The Ontario Human Rights Commission’s policy and guidelines on racism and racial discrimination say that there is no fixed definition of racial discrimination but note that it could be viewed as:

“… any distinction, conduct or actions, whether intentional or not, but based on a person’s race, which has the effect of imposing burdens on an individual or group, not imposed upon others or which withholds or limits access to benefits available to other members of society.”

It explains that racial discrimination can take the form of stereotyping, overt prejudice, racial profiling or subtle discrimination, such as differential management practices, assigning disproportionate blame or characterizing normal communication as rude or aggressive. 

It also occurs at an organizational level through systemic discrimination, which refers to patterns of behaviour, policies or practices that are part of the organization’s structures and which create or continue a position of relative disadvantage.

How can you prove racial discrimination?

In proceedings before the HRTO, establishing discrimination can sometimes be contentious. Was the adverse treatment due to the employee’s race or just because of some other innocent explanation?

The person who brings the complaint needs to prove a “prima facie” (that is, apparent) case of discrimination. If they can do so, the employer needs to provide a non-discriminatory explanation for the conduct if they are to rebut the employee’s case.

To establish a prima facie case of discrimination, the employee needs to show:

• that they are a member of a Code-protected group;
• that they were subjected to adverse treatment; and
• that the Code ground (for example, race) was a factor in the alleged adverse treatment.

Importantly, there needs to be a nexus between the employee’s race and the relevant conduct. The employee does not need to prove that the employer intended to discriminate, but a mere possibility of discrimination is not sufficient – it needs to be proved on the balance of probabilities. 

Employee claimed racial discrimination after his temporary assignment was terminated 

Turning to the recent decision of the HRTO, the applicant is a Filipino person employed by the Toronto District School Board as a secondary school occasional teacher. 

He claimed that his employer terminated a temporary assignment at a secondary school and gave it to another teacher of a different race. He argued that this constituted discrimination because of race, place of origin and ethnic origin.

The employer offered an innocent explanation unrelated to race, claiming that the employee was removed because he lacked the skills needed. 

The employee was given the wrong lesson plan

The applicant accepted a five-day assignment to teach a computer course to students with special educational needs. 

At the start of each day, an administrative assistant provides the occasional teacher with a folder that contains the lesson plans and other information needed to conduct the class. On this particular day, the employee was not given the correct lesson plan containing the link needed to access the computer program so he could not successfully teach the course.

The assistant then cancelled the applicant’s assignment. The applicant argued that the assistant intentionally gave the incorrect lesson plan so that he would be replaced.

The employee had not established a prima facie case of discrimination

The HRTO adjudicator explained that the applicant had not given any evidence that the other teacher was selected due to their race or that the assistant was biased towards teachers of particular races. 

The applicant knew that he did not have the correct lesson plan and did not take steps to fix this. There was a clear administrative error but no evidence of a conspiracy to remove him from the assignment. 

The adjudicator noted that direct evidence of racial discrimination may be difficult to obtain, so it may be necessary to draw inferences from circumstantial evidence showing race was a factor in the conduct. The adjudicator could not draw such an inference in this case:

“However, I find in this Application the applicant has not provided circumstantial evidence to show that the decision to terminate his assignment was based, at least in part, on his protected grounds. It is my view that the applicant, failing to understand why he was unsuccessful in the assignment, speculated that it was due to a reason such as his race and ethnicity, that was beyond his control.”

While the situation was unfair, the applicant had not established a prima facie case of discrimination. The employee’s application was dismissed. 

Contact Haynes Law Firm in Toronto for Advice on Workplace Discrimination 

Haynes Law Firm represents both employees and employers in all types of human rights violation claims. We represent employees that have experienced discrimination and harassment, helping them to build strong cases by gathering the necessary circumstantial evidence to show all the factors at play when an employer treats them adversely. We also help our employer clients defend baseless claims and manage performance issues. Please contact us online or call us at 416.593.2731 to schedule a consultation.